LODHA, J. - (1.) ON the night of 16 4-1970 when P. W. 2 Bhagwati Kishore was sitting with his wife in privacy at about 10 45 p. m. a room of his house abutting on the public street in the city of Kota, there appeared a shadow of a man on the curtain of the window giving an impression to the couple that some-body was improperly invading their privacy. Consequently Bhagwati Kishore challenged the person to which an offensive reply came from the intruder. This intruder is alleged to be the accused. The accused challenged P. W. 2 Bhagwati Kishore to come out. Meanwhile Bhagwati Kishore's father Ramkrishna deceased happened to come there and on a verbal altera-tion between him and the accused, the accused struck a blow with a knief at the chest of Ramkrishna who fell down badly injured and cried out that the accused Sajan had struck him. Bhagwati Kishore ran after the accused but the latter threatened to kill him also and so Bhagwati Kishore gave up the chase and the accused ran away. Bhagwati Kishore went to the Police Out-Post, Kethooni, and lodged a written report Ex. P. 2 of the occurrence. Thereafter he came to the spot where a few persons of the locality had collected, and had taken Ramkrishna to the Hospital, from where the police constable who had also accompanied them to the hospital phoned at the Police Station, Makbara that Ramkrishna had died in the night. P. W. 17 Ramsaran, Station House Officer, Police Station, Makbara registered a case under sec. 302 I. P. C. against the accused and started for the place of occurrence for investigation and also sent Police Constables Udaybhan Singh and Bhomsingh to search out the accused and arrest him. P. W. 4 Udaybhan Singh arrested the accused the same night at about 11-45 p. m. , outside Kishorepura Gate and produced him before Station House Officer. The arrest memo is Ex. P. 5. The Station House Officer conducted a personal search of the accused and recovered a blood stained knife from the pocket of the pent worn by the accused at that time. The recovery memo of the knife is Ex. P. 8. Since blood stained were found also on the pent and the underwear worn by the accused they were taken into custody by the police. The recovery memo of the clothes of the accused is Ex. P. 9. The knife as well as the clothes were sealed by the Station House Officer and were sent to the Chemical Examiner on April 25, 1970 with Head Constable P. W. 14 Uma Shanker. The report of the Chemical Examiner is Ex. P. 18 and the report of the Serologist is Ex. P. 19. The Knife as well as the clothes were found stained with human blood. The post-mortem examination of the dead body of Ramkrishna conducted by Dr. R. K. Gupta (P. W. 15) revealed the following injuries: - (1) Stab wound l-1/4"x5/8" on the front of right side of chest on its lower part at the sterno chondrial junction of right 7th rib, margins cleanly out and lying horizontally. ON further dissection the costo chondrial junction of right 7th rib was cut. It was going onward and little laterally, injuring the pleura, pericardium and perforating the right atrium 3/8* in length Naemopericar-dium was present. Little right sided haemo thoriax was seen. (2) Abrasion l-1/4"x3/4" on the front of left knee. The post-mortem report proved by the doctor is Ex. P. 3.
(2.) THE case was tried by the Sessions Judge, Kota who by his judgment dated 29-4-1971 convicted the accused under sec. 302 I. P. C. and sentenced him to imprisonment for life. Aggrieved by his conviction and sentence the accused has submitted this appeal. Learned counsel for the appellant has urged that the direct evidence of the crime produced by the prosecution is not reliable. He has also argued that the presence of blood stains on the blade of the knife as well as on the clothes cannot be used as an incriminating circumstance against the accused inasmuch as the alleged recovery of the knife from the possession of the accused is doubtful and the articles had not been properly sealed so as to exclude the possibility of the same being tampered with In the last resort he has contended that even if the case is held to be proved against the accused, the offence falls under section 304 Part II and not under section 302 LP G. It may be pointed out that the first information report was made at 11. 20 p. m. that is, within less than an hour of the occurrence It contains the name of the accused as well as the weapon of offence. It is important to note that the accused was apprehended within an hour of the occurrence i. e. at 11. 45 p m. It is also worthy of note that Bhagwati Kishore, the first informant had no animus whatsoever against the accused for falsely implicating him in a serious case of murder of his father. The accused has no doubt denied his complicity in the crime but has not imputed any motive against either Bhagwati Kishore or any of the eye-witnesses for implicating him. On the other hand he has put a counter theory namely that Bhagwati Kishore may have himself killed his father on account of certain differences between them on domestic matters. This counter theory has no basis and does not deserve any attention. It has no foundation and is palpably absurd. These circumstances are, in our opinion, suggestive. That Ramkrishna fell injured outside the house of Bhagwati Kishore from where the Station House Officer recovered blood stained stone in the presence of 'motbirs', is a matter beyond dispute. Again the fact that Ramkrishna died on account of the chest injury by a sharp weapon is also beyond dispute. Coming to the direct evidence we have first, the evidence of P. W. 2 Bhagwati Kishore and his wife P. W. 3 Smt. Indra. We have gone through their evidence and find it truthful and forthright ;consistent with the circumstances of the case. There are no such material discrepancies in their statements so as to render their testimony doubtful. The main argument made by the learned counsel in connection with the evidence of these witnesses is that there was lack of sufficient light and these witnesses may not have been able to identify the assailant and at any rate may not have seen the assailant inflicting blow to the deceased. It may be pointed out that the couple was awake in the room in which light was on, as stated by Bhagwati Kishore. He has stated that there was light on the road coming from the house of Laxman Raj and so also from another neighbour Shri Kishan's house. He has further stated that the road light was also burning at that time. It is clear from the statements of these two witnesses that they had a talk with the accused before the occurrence and had resented the act of the accused in coming so near to the window. It is also clear from the statement of P. W. 2 Bhagwati Kishore that he knew the accused from before, as he has stated, that the accused Sajan was a bad character and used to indulge in eve-teasing and misbehaved with the girls, residing in his house and his father used to rebuke him for that. Bhagwati Kishore has stated that after the accused had injured his father, he ran after the accused but dare not catch him as the accused threatened to take his life also. In these circumstances, there is no room for doubt that these two witnesses correctly identified the accused as the assailant of Ramkrishna. The evidence of these two witnesses is amply corroborated by another eyewitness P,w. 1 Mangilal. Learned counsel for the appellant is, no doubt, correct in his criticism that the name of Mangilal is not mentioned in the first information report, but in the circumstances of the case we do not consider it a material omission. It appears from the testimony of P. W. 1 Mangilal that even though he resided in a temple of his relation, he used to take his meals at his son's house, which is situated just opposite to the place of occurrence. He states that he had seen the accused inflicting a knife blow to the deceased from a distance of 5 to 6 steps. It may very well be that in a confused state of mind P-W. 2 Bhagwati Kishore might not have mentioned the name of Mangilal though he mentioned the names of few others who had collected there. He that as it may, for arguments' sake, even if we ignore the testimony of Mangilal, we consider the evidence of Bhagwati Kishore and Smt. Indra good enough for holding that the accused had been identified as the assailant of the deceased Ram Krishna. To lend further assurance to our minds, there is the evidence of recovery of blood stained knife and blood stained clothes from the person of the accused, soon after his arrest. We have looked into the evidence of the Investigating Officer as well as P. W. 4 Udaybhan Singh who had apprehended the accused and the 'motbir' P. W. 16 Sajan. We do not see any reason to reject their evidence regarding the recovery of the said articles. The articles were sealed as soon as they were recovered and were kept in 'malkhana', and then sent for chemical examination quite expeditiously i. e. within 10 days of the recovery. P. W. 17 Ramsaran has stated in unequivocal terms that at the time of despatch of the articles for chemical examination the seals of the packages in which the articles had been put were in tact, and exactly in the same condition as they were when the seals were put. Then we have the statement of P. W. 14 Uma Shanker, who had carried the packages to the Chemical Examiner at Jaipur. He has stated that the packages were not at all tampered with. Further, in the Chemical Examiner's report Ex. P. 17 there is a specific mention that the seals of the packages were found in tact as per specification. In this state of evidence we are unable to accept the contention raised on behalf of the accused-appellant that the prosecution had not eliminated chances of tampering with the sealed packages of the articles. This evidence of recovery of blood stained knife and clothes from the person of the accused soon after the occurrence is a strong corroborative piece of evidence so as to bring conviction to our minds regarding guilt of the accused.
(3.) WE may also mention, here, in passing that the evidence of Bhagwati Kishore and Smt. Indra is that at the time the blow was given to the deceased, he uttered the following words, "bhanwar, Sajan has struck me with a knife. " It may be mentioned, here, that Bhanwar is another name of PW/2 Bhagwati Kishore. This evidence is also relevant and corroborative the testimony of the eye witnesses. There is thus, over-whelming evidence against the accused, and the offence has been brought home to him beyond all manner of reasonable doubt. This brings us to the question of the nature of the offence viz. whether the accused should be punished u/s 304, Part II IPC as contended by his learned-counsel or he has been rightly convicted u/s. 302 IPC Learned counsel for the accused has endea-voured to show that there must have been an altercation and fight between the deceased may have given foul abuses and the accused in course of which the deceased to the accused which caused grave and sudden provocation and in the heat of the moment the accused gave only a single blow with a knife to the deceased without intending to cause his death or an injury sufficient in the ordinary course of nature to cause death. In support of his contention he has relied upon Hansraj Singh vs. Emperor (l) Khan Nir vs. Emperor (2),in re Kudumulamahanandi Reddi (3) & K. Palani Moopen vs. State (4 ). On the other hand the learned Addl. G. Advocate has placed strong reliance on the observations of their Lordships of the Supreme Court in Virsa Singh vs. State of Punjab (5 ). In Virsa Singh vs. State of Punjab (5) their Lordships were pleased to observe as follows - "to put it shortly, the prosecution must prove the following facts before it can bring a case sec. 300 "'thirdly". First, It must establish quite objectively that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unin tentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with intention of the offender. " It has been further observed that - "once the intention to cause the bodily injury actually found to be present is proved the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a license to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional. " ;